Terms and Conditions of Sale - Version 3.2 - 09 October 15

 

INTERPRETATION

1.1    In these Conditions:

‘Seller’ means PowerPhotonic Ltd.

‘Buyer’ means the person, firm, company or organisation who accepts a quotation of the Seller for the sale of Goods or whose order for the Goods is accepted by the Seller.

‘Goods’ shall mean the product or services (including any installation of the Goods or any parts for them) that the Seller is to supply in accordance with these Conditions.

‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.

‘Agreement’ means the contract constituted by acceptance of the Buyer of the Proposal and these Conditions.

‘Proposal’ means any written quotation or offer to supply Goods to the Buyer.

‘Written’ includes email, facsimile transmission and comparable means of communication.

1.2     The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

2.             ACCEPTANCE OF AGREEMENT

2.1    The Proposal and the Conditions shall constitute the entire Agreement between the parties. The Proposal may be accepted in written form within 30 days of the date of the Proposal, unless a different “Validity of Quotation” period is explicitly stated within the proposal.

2.2    There are no other Agreements, representations or understandings, either written or oral, to conflict with, alter or enlarge this Agreement unless agreed to in writing between the parties subsequent to the date of acceptance of the Proposal.

2.3    Notwithstanding acceptance by the Buyer, the Seller’s obligation hereunder is subject to approval of the Buyer' credit by the Seller.

2.4    The placing of an order or the acceptance of a delivery by the buyer will constitute agreement to these terms.

 

3.          PROPRIETARY RIGHTS AND CONFIDENTIALITY

3.1    The Seller reserves all rights, including copyrights, in any and all documents relating to the Proposal. Such documents may not be made available in any manner to third parties without the prior written permission of the Seller and are, if the Goods are not purchased, to be returned immediately upon the request of the Seller.

3.2    Any intellectual property arising in relation to the Goods, including from developments, inventive steps or designs in relation to the construction of the Goods remain the intellectual property of the Seller and may not be made available in any manner to any third party or utilised in any manner by the Buyer or their agents for their own benefit (other than to facilitate use of the Goods supplied by the Seller or incorporation of the Goods into the Buyer’s product), unless and to the extent agreed by the Seller in writing.

3.3    The Buyer is obligated to observe strict confidentiality of information connected with the Proposal, even if no order for the Goods is placed. In particular, the Buyer may not use or disclose in any written or other tangible or any other form knowledge, drawings, designs, etc. for its own benefit or for the benefit of any third party. In addition, the Buyer is obligated to ensure that all of its employees or agents also observe strict confidentiality of information.

3.4    In the case of violation of any of these obligations by the Buyer, the Seller will be entitled to claim compensatory damages from the Buyer, without limitation.  The Buyer agrees that compensatory damages may not be sufficient in order to remedy the Seller’s loss and that the Seller will also be entitled to interdict or injunction, action for specific implement or similar in order to protect the confidentiality of its information.

 

4.             PRICE AND PAYMENT

4.1    The prices quoted are based on Government taxes and regulations in force, at the date of this Proposal and such prices are subject to change in accordance with any changes in taxes and regulations made prior to delivery of the Goods. In case partial shipments are made at different times, pro-rata payments shall be made thereof.

4.2    If shipments of the Goods, or any material part thereof, are delayed by any cause for which the Buyer is directly or indirectly responsible, the date of completion of delivery of the Goods by the Seller shall be regarded as the date of shipment in determining when payments for said Goods are to be made, and the Seller shall be entitled to receive reasonable compensation for storing the completed Goods, which shall be held at the Buyer's risk.

4.3    All payments shall be in the currency quoted. The Buyer agrees that should any of the payments not be made to the Seller when due under the terms of this Proposal, then a service charge on such overdue payments shall be billed by the Seller and paid by the Buyer until the price including service charges, has been fully paid in cash, but this shall not be construed as obligating the Seller to grant any extension of time in terms of payment.

4.4    All prices quoted are valid for thirty days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.5    The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller that is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods that is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.6    The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

4.7    The price is exclusive of any applicable import duties or other taxes that may be levied as a result of the supply of the goods by the seller to the buyer.

4.8    The price is exclusive of all carriage and insurance and packing unless otherwise stated in the quotation that forms the basis of the agreement.

 

5.          TITLE AND RISK

5.1    The title to the Goods or any part thereof shall pass from the Seller to the Buyer upon payment in full for the Goods, except as otherwise expressly stipulated herein.

5.2    The Goods shall be and remain personal property, notwithstanding its mode of attachment to realty or other property.

5.3    If default is made in any of the payments herein, the Seller may retain any partial payments that have been made, as liquidated damages, and the Seller shall be entitled to the immediate possession of the Goods and shall be free to enter the premises where the Goods may be located and remove them as the Seller's property, without prejudice to the Seller's right to recover any further expenses or damages the Seller may suffer by reason of such non-payment.

5.4    Notwithstanding the terms hereof, risk will pass to the Buyer at the point of shipment of the Goods.

6.      DELIVERY

6.1    Unless otherwise expressly agreed in writing, delivery of the Goods will be made ex-works the Seller's plant or warehouse.

6.2    Delivery dates herein specified are subject to prior allocation of manufacturing and engineering capacity and to the receipt of all information necessary to allow maintenance of the Seller's engineering and manufacturing schedules. Delivery dates should be understood to be approximate and are not of the essence.

7.          TERMS OF PAYMENT

7.1    The Seller's terms of payment are set out in the Proposal. In the absence of a proposal the company’s standard terms of net 30 days shall apply.

7.2    Notwithstanding the Terms of Payment as set out in the Proposal, if in the Seller's sole judgment the Buyer's financial condition does not at any time warrant the provision of Goods or shipment on the original terms, the Seller may require payment in advance.

8.          RETURN AND REPLACEMENT

8.1    The request to return or replace any goods will be documented in writing by the Buyer, with detailed information about the reasons for the request.

8.2    No Goods may be returned or replaced without the explicit written Agreement of the Seller, which will be confirmed only by the issuance of an RMA number.

9.          CLAIMS FOR DAMAGE OR LOSS IN TRANSIT

9.1    Any claims from a Buyer that relate to the specifications of Goods delivered, or to their condition at the time of delivery, must be made, in writing, within 4 days of the date of receipt of the Goods by the Buyer.

10.        WARRANTY

10.1 The Buyer confirms by his purchase order that he is aware of the Conditions of warranty applicable to the Goods on the order. Conditions of warranty applicable to the order are those stated in the quotation that forms the basis of this order and set out below in this clause 10. 

10.2  The Seller warrants that on delivery the Goods shall:

         (a)     conform in all material respects with their description and any applicable specification as set out in the Proposal;

(b)     be free from material defects in design, material and workmanship; and

(c)      be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

10.3  Subject to clause 10.4, if:

(a)     the Buyer gives notice in writing to the Seller within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 10.2; and

(b)     the Seller is given a reasonable opportunity of examining such Goods; and

(c)      the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business,

the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

10.4  The Seller shall not be liable for Goods' failure to comply with the warranty set out in clause 10.2 if:

(a)     the Buyer makes any further use of such Goods after giving notice in accordance with clause 10.3; or

(b)     the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or

(c)      the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer; or

(d)     the Buyer alters or repairs such Goods without the written consent of the Seller; or

(e)     the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.

10.5  Except as provided in this clause 10, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 10.2.

10.6  Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

10.7  These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.

 

11.        LIMITATION OF LIABILITY

11.1 Neither the Seller nor the Buyer shall be liable to the other for loss of profit, special, punitive, indirect or consequential loss or damages arising under or in connection with this Agreement, whether from breach of contract, in delict or tort (including negligence), breach of statutory duty or otherwise. 

11.2  Without prejudice to clause 11.1, the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the Agreement, whether in contract, delict or tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the unit price of the defective product or of the product subject to late delivery.

11.3  The Buyer agrees that clause 11.2 represents a reasonable allocation of risk and that it shall be for the Buyer to procure its own insurance in respect of any losses in excess of the cap in 11.2 to the extent it deems necessary.

11.4  The acceptance  of the Goods by the Buyer shall constitute a waiver of all claims for loss or damage due to delay.

11.5  Nothing in these Conditions shall limit or exclude the Seller's liability for: 

(a)     death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)     fraud or fraudulent misrepresentation; or

(c)      breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

(d)     any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

11.6  The Buyer indemnifies and holds harmless the Seller, its directors, employees or agents (together the “HH Persons”) from any costs, losses, or liabilities (including reasonable legal costs and internal management time) suffered by any HH Person(s) resulting from any action, claim, injunction, order or other proceedings taken or threatened by any party against any HH Person(s) resulting from the provision to any of them of any information, designs or intellectual property by the Buyer, its officers, employees or agents or in relation to any use by the Seller of such information, designs or intellectual property consistent with the terms of a contract or agreement between the Buyer and Seller, except to the extent caused by any blameworthy conduct or omission by the Seller.

 

12.        FORCE MAJEURE

12.1  The Seller shall not be responsible or liable for any loss, damage, detention or delay caused by war, invasion, insurrection, riot, the order of any civil or military authority, or by fire, flood, weather or other acts of the elements, breakdown, lockouts, strikes or labour disputes, the failure of the Seller's suppliers to meet their contractual obligations, or, without limitation of the foregoing, any other cause beyond the reasonable control of the Seller and the acceptance of the Goods by the Buyer shall constitute a waiver of all claims for loss or damage due to delay.

13.        BASIS OF AGREEMENT

13.1  Any terms or conditions on the Buyer’s order form that are inconsistent with or additional to the above Conditions of Sale shall not apply unless specifically agreed in writing by the Seller. The above Conditions of Sale form the sole basis of the Agreement between the Buyer and the Seller and operate to the exclusion of any which might otherwise be implied by trade, custom, practice or course of dealing. 

13.2  The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in Proposal or these Terms and Conditions. Any samples, drawings, descriptive matter, or advertising issued by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of this Agreement or any other contract between the Seller and the Buyer for the sale of the Goods.

13.3  The Agreement pertaining to the sale of Goods specified on the Proposal is subject to Scottish law and any action related thereto is to be brought before the Scottish Courts unless the Seller decides to bring action before the Courts having jurisdiction over the Buyer's domicile.